895.037(3)(c)
(c) A conviction under
sub. (2) (a) is not a condition precedent to bringing an action, obtaining a judgment or collecting that judgment under this subsection.
895.037(3)(d)
(d) A person who recovers damages under
par. (a) or
(b) may also recover reasonable attorney fees incurred in connection with the action, notwithstanding
s. 814.04 (1).
895.037(3)(e)
(e) A contract is not a defense to an action under this subsection.
895.037(3)(f)
(f) Nothing in this subsection limits the common law rights of parents, guardians, legal custodians and minors.
895.037(4)
(4) Confidentiality. The identity of a minor who is the subject of an action under this section and the identity of the minor's parents, guardian and legal custodian shall be kept confidential and may not be disclosed, except to the court, the parties, their counsel, witnesses and other persons approved by the court. All papers filed in and all records of a court relating to an action under this section shall identify the minor as "Jane Doe" and shall identify her parents, guardian and legal custodian by initials only. All hearings relating to an action under this section shall be held in chambers unless the minor demands a hearing in open court and her parents, guardian or legal custodian do not object. If a public hearing is not held, only the parties, their counsel, witnesses and other persons requested by the court, or requested by a party and approved by the court, may be present.
895.037 History
History: 1991 a. 263.
895.037 Annotation
The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey,
505 U.S. 833,
120 L. Ed. 2d 674 (1992).
895.038
895.038
Partial-birth abortions; liability. 895.038(2)(a)(a) Except as provided in
par. (b), any of the following persons has a claim for appropriate relief against a person who performs a partial-birth abortion:
895.038(2)(a)1.
1. If the person on whom a partial-birth abortion was performed was a minor, the parent of the minor.
895.038(2)(a)2.
2. The father of the child aborted by the partial-birth abortion.
895.038(2)(b)
(b) A person specified in
par. (a) 1. or
2. does not have a claim under
par. (a) if any of the following apply:
895.038(2)(b)1.
1. The person consented to performance of the partial-birth abortion.
895.038(3)
(3) The relief available under
sub. (2) shall include all of the following:
895.038(3)(a)
(a) If the abortion was performed in violation of
s. 940.16, damages arising out of the performance of the partial-birth abortion, including damages for personal injury and emotional and psychological distress.
895.038(3)(b)
(b) Exemplary damages equal to 3 times the cost of the partial-birth abortion.
895.038(4)
(4) Subsection (2) applies even if the mother of the child aborted by the partial-birth abortion consented to the performance of the partial-birth abortion.
895.038 History
History: 1997 a. 219;
2005 a. 277.
895.038 Annotation
A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carthart,
530 U.S. 949,
147 L. Ed. 2d 743 (2000).
895.04
895.04
Plaintiff in wrongful death action. 895.04(1)
(1) An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs.
895.04(2)
(2) If the deceased leaves surviving a spouse, and minor children under 18 years of age with whose support the deceased was legally charged, the court before whom the action is pending, or if no action is pending, any court of record, in recognition of the duty and responsibility of a parent to support minor children, shall determine the amount, if any, to be set aside for the protection of such children after considering the age of such children, the amount involved, the capacity and integrity of the surviving spouse, and any other facts or information it may have or receive, and such amount may be impressed by creation of an appropriate lien in favor of such children or otherwise protected as circumstances may warrant, but such amount shall not be in excess of 50% of the net amount received after deduction of costs of collection. If there are no such surviving minor children, the amount recovered shall belong and be paid to the spouse of the deceased; if no spouse survives, to the deceased's lineal heirs as determined by
s. 852.01; if no lineal heirs survive, to the deceased's brothers and sisters. If any such relative dies before judgment in the action, the relative next in order shall be entitled to recover for the wrongful death. A surviving nonresident alien spouse and minor children shall be entitled to the benefits of this section. In cases subject to
s. 102.29 this subsection shall apply only to the surviving spouse's interest in the amount recovered. If the amount allocated to any child under this subsection is less than $10,000,
s. 807.10 may be applied. Every settlement in wrongful death cases in which the deceased leaves minor children under 18 years of age shall be void unless approved by a court of record authorized to act hereunder.
895.04(3)
(3) If separate actions are brought for the same wrongful death, they shall be consolidated on motion of any party. Unless such consolidation is so effected that a single judgment may be entered protecting all defendants and so that satisfaction of such judgment shall extinguish all liability for the wrongful death, no action shall be permitted to proceed except that of the personal representative.
895.04(4)
(4) Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death.
895.04(5)
(5) If the personal representative brings the action, the personal representative may also recover the reasonable cost of medical expenses, funeral expenses, including the reasonable cost of a cemetery lot, grave marker and care of the lot. If a relative brings the action, the relative may recover such medical expenses, funeral expenses, including the cost of a cemetery lot, grave marker and care of the lot, on behalf of himself or herself or of any person who has paid or assumed liability for such expenses.
895.04(6)
(6) Where the wrongful death of a person creates a cause of action in favor of the decedent's estate and also a cause of action in favor of a spouse or relatives as provided in this section, such spouse or relatives may waive and satisfy the estate's cause of action in connection with or as part of a settlement and discharge of the cause of action of the spouse or relatives.
895.04(7)
(7) Damages found by a jury in excess of the maximum amount specified in
sub. (4) shall be reduced by the court to such maximum. The aggregate of the damages covered by
subs. (4) and
(5) shall be diminished under
s. 895.045 if the deceased or person entitled to recover is found negligent.
895.04 Annotation
Statutory increases in damage limitations recoverable in wrongful death actions constitute changes in substantive rights and not mere remedial changes. Bradley v. Knutson,
62 Wis. 2d 432,
215 N.W.2d 369 (1974).
895.04 Annotation
A parent may maintain an action for loss of aid, comfort, society, and companionship of an injured minor child on the condition that the parents' cause of action is combined with that of the child for the child's personal injuries. Shockley v. Prier,
66 Wis. 2d 394,
225 N.W.2d 495 (1975).
895.04 Annotation
In an action for wrongful death by 2 children of the deceased, the plaintiffs' failure to join 3 other siblings who would otherwise have been indispensable parties was not fatal to the court's subject matter jurisdiction because affidavits submitted to the trial court indicated that the 3 siblings were unavailable. Kochel v. Hartford Accident & Indemnity Co.
66 Wis. 2d 405,
225 N.W.2d 604 (1975).
895.04 Annotation
A judgment under sub. (2) means a final, not interlocutory, judgment. Collins v. Gee,
82 Wis. 2d 376,
263 N.W.2d 158 (1978).
895.04 Annotation
The trial court in a wrongful death action should inform the jury of statutory limitations on recovery, if any. Peot v. Ferraro,
83 Wis. 2d 727,
266 N.W.2d 586 (1978).
895.04 Annotation
A posthumous illegitimate child may not maintain an action for the wrongful death of the putative father. Robinson v. Kolstad,
84 Wis. 2d 579,
267 N.W.2d 886 (1978).
895.04 Annotation
This section does not require that proceeds be equally divided between parents. Keithley v. Keithley,
95 Wis. 2d 136,
289 N.W.2d 368 (Ct. App. 1980).
895.04 Annotation
Punitive damages are not recoverable incident to damages for wrongful death. Wangen v. Ford Motor Co.
97 Wis. 2d 260,
294 N.W.2d 437 (1980).
895.04 Annotation
This section does not permit an estate to recover, on its own behalf, damages for the decedent's pecuniary loss. Weiss v. Regent Properties, Ltd.
118 Wis. 2d 225,
346 N.W.2d 766 (1984).
895.04 Annotation
Recovery under sub. (7) is barred by s. 895.045 if a decedent's negligence was greater than any individual tortfeasor's. Delvaux v. Vanden Langenberg,
130 Wis. 2d 464,
387 N.W.2d 751 (1986).
895.04 Annotation
A spouse's claim under sub. (4) for loss of society and companionship is additional to a common law claim for loss of consortium prior to the death of the deceased. Kottka v. PPG Industries, Inc.
130 Wis. 2d 499,
388 N.W.2d 160 (1986).
895.04 Annotation
A person who "feloniously and intentionally" kills his or her spouse is not a surviving spouse for purposes of sub. (2) and is treated as having predeceased the decedent. Stienbarth v. Johannes,
144 Wis. 2d 159,
423 N.W.2d 540 (1988).
895.04 Annotation
"Pecuniary injury" under sub. (4) includes the loss of any benefit, including social security disability benefits, that a plaintiff would have received from the decedent. Estate of Holt v. State Farm,
151 Wis. 2d 455,
444 N.W.2d 453 (Ct. App. 1989).
895.04 Annotation
This section is inapplicable in medical malpractice actions. There is no cause of action in an adult child for the loss of society and companionship of a parent. Dziadosz v. Zirneski,
177 Wis. 2d 59,
501 N.W.2d 828 (Ct. App. 1993).
895.04 Annotation
The damage limitation under sub. (4) is inapplicable to medical malpractice actions in which death resulted. Sub. (2) does not prevent a minor from bringing an action for a loss of companionship when malpractice causes a parent's death, including when the decedent is survived by a spouse. Jelinik v. St. Paul Fire & Casualty Ins. Co.
182 Wis. 2d 1,
512 N.W.2d 764 (1994).
895.04 Annotation
Although only one parent was the named insured under an uninsured motorist insurance policy paying benefits for the wrongful death of the parents' child, this section requires payment of the proceeds to both parents. Bruflat v. Prudential Property & Casualty Insurance Co. 2000 WI App 69,
233 Wis. 2d 523,
608 N.W.2d 371,
99-2049.
895.04 Annotation
Sub. (4) does not: 1) nullify the state constitutional right to have a jury assess damages under Art. I, s 5; 2) violate separation of powers principles by blurring the boundaries between judicial and legislative branches; 3) violate constitutional equal protection guarantees; and 4) does not violate substantive due process. Maurin v. Hall, 2004 WI 100,
274 Wis. 2d 28,
682 N.W.2d 866,
00-0072. Partially overruled on other grounds. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91,
04-2592.
895.04 Annotation
The rule that one who claims subrogation rights, whether under the aegis of either legal or conventional subrogation, is barred from any recovery unless the insured is made whole is applicable in wrongful death actions. Wrongful death plaintiffs are entitled to be made whole for their losses, but not more than whole. To the extent that wrongful death plaintiffs receive a portion of damages for expenses they have not incurred after having been made whole, they have been unjustly enriched. Petta v. ABC Insurance Co. 2005 WI 18,
278 Wis. 2d 251,
692 N.W.2d 639,
03-0610.
895.04 Annotation
The jury award of noneconomic damages for pre-death claims, namely the claim for the decedent's pre-death pain and suffering, and the jury award for pre-death loss of society and companionship are governed by the cap set forth in the medical malpractice statutes, s. 893.55, and not the wrongful death statute, this section. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, ___ Wis. 2d ___,
717 N.W.2d 216,
04-2592.
895.04 Annotation
There may not be separate recovery for both an estate and its beneficiaries. Bell v. City of Milwaukee,
746 F.2d 1205 (1984).
895.04 Annotation
Expanding and limiting damages for pecuniary injury due to wrongful death. Schoone, 1972 WBB No. 4.
895.04 Annotation
Cause of action by parents sustained for loss of society and companionship of child tortiously injured. 1976 WLR 641.
895.043(1)(a)
(a) "Defendant" means the party against whom punitive damages are sought.
895.043(1)(b)
(b) "Double damages" means those court awards made under a statute providing for twice, 2 times or double the amount of damages suffered by the injured party.
895.043(1)(c)
(c) "Plaintiff" means the party seeking to recover punitive damages.
895.043(1)(d)
(d) "Treble damages" means those court awards made under a statute providing for 3 times or treble the amount of damages suffered by the injured party.
895.043(2)
(2) Scope. This section does not apply to awards of double damages or treble damages, or to the award of exemplary damages under
ss. 46.90 (9) (a) and
(b),
51.30 (9),
51.61 (7),
55.043 (9m) (a) and
(b),
103.96 (2),
134.93 (5),
146.84 (1) (b) and
(bm),
153.85,
252.14 (4),
252.15 (8) (a),
610.70 (7) (b),
943.245 (2) and
(3) and
943.51 (2) and
(3).
895.043(3)
(3) Standard of conduct. The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.
895.043(4)
(4) Procedure. If the plaintiff establishes a prima facie case for the allowance of punitive damages:
895.043(4)(a)
(a) The plaintiff may introduce evidence of the wealth of a defendant; and
895.043(4)(b)
(b) The judge shall submit to the jury a special verdict as to punitive damages or, if the case is tried to the court, the judge shall issue a special verdict as to punitive damages.
895.043(5)
(5) Application of joint and several liability. The rule of joint and several liability does not apply to punitive damages.
895.043 History
History: 1995 a. 17;
1997 a. 71;
1999 a. 79;
2005 a. 155 s.
71; Stats. 2005 s. 895.043;
2005 a. 388 s.
216.
895.043 Note
NOTE: The first 3 cases noted below were decided prior to the adoption of s. 895.85 [now s. 895.043].
895.043 Annotation
Punitive damages may be awarded in products liability cases. Judicial controls over punitive damage awards are established. Wangen v. Ford Motor Co.
97 Wis. 2d 260,
294 N.W.2d 437 (1980).
895.043 Annotation
Guidelines for submission of punitive damages issues to the jury in a products liability case are discussed. Walter v. Cessna Aircraft Co.
121 Wis. 2d 221,
358 N.W.2d 816 (Ct. App. 1984).
895.043 Annotation
In awarding punitive damages, the factors to be considered are: 1) the grievousness of the wrongdoer's acts; 2) the degree of malicious intent; 3) the potential damage that might have been caused by the acts; and 4) the defendant's ability to pay. An award is excessive if it inflicts a punishment or burden that is disproportionate to the wrongdoing. That a judge provided a means for the defendant to avoid paying the punitive damages awarded did not render the award invalid. Gianoli v. Pfleiderer,
209 Wis. 2d 509,
563 N.W.2d 562 (Ct. App. 1997),
95-2867.
895.043 Annotation
Nominal damages may support a punitive damage award in an action for intentional trespass. A grossly excessive punishment violates due process. Whether punitive damages violate due process depends on: 1) the reprehensibility of the conduct; 2) the disparity between the harm suffered and the punitive damages awarded; and 3) the difference between the award and other civil or criminal penalties authorized or imposed. Jacque v. Steenberg Homes,
209 Wis. 2d 605,
563 N.W.2d 154 (1997),
95-1028.
895.043 Annotation
A circuit court entering default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the claim and the amount to be awarded. Apex Electronics Corp. v. Gee,
217 Wis. 2d 378,
571 N.W.2d 23 (1998),
97-0353.
895.043 Annotation
The requirement under sub. (3) that the defendant act "in an intentional disregard of the rights of the plaintiff" necessitates that the defendant act with a purpose to disregard the plaintiff's rights or be aware that his or her conduct is substantially certain to result in the plaintiff's rights being disregarded. The act or course of conduct must be deliberate and must actually disregard the rights of the plaintiff, whether it be a right to safety, health or life, a property right, or some other right. There is no requirement of intent to injure or cause harm. Wischer v. Mitsubishi Heavy Industries America, Inc. 2005 WI 26,
279 Wis. 2d 6,
694 N.W.2d 320,
01-0724.
895.043 Annotation
A defendant's conduct giving rise to punitive damages need not be directed at the specific plaintiff seeking punitive damages in order to recover under the statute. Wischer v. Mitsubishi Heavy Industries America, Inc. 2005 WI 26,
279 Wis. 2d 6,
694 N.W.2d 320,
01-0724.
895.043 Annotation
The availability of punitive damages depends on the character of the particular conduct committed rather than on the theory of liability propounded by the plaintiff. The recovery of punitive damages requires that something must be shown over and above the mere breach of duty for which compensatory damages can be given. Unified Catholic Schools of Beaver Dam Education Association v. Universal Card Services Corp.
34 F. Supp. 2d 714, (1999).
895.043 Annotation
The Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.
895.045
895.045
Contributory negligence. 895.045(1)
(1)
Comparative negligence. Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed.
895.045(2)
(2) Concerted action. Notwithstanding
sub. (1), if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in
s. 895.043 (5).
895.045 Cross-reference
Cross-reference: See s.
891.44 for conclusive presumption that child under 7 cannot be guilty of contributory negligence.
895.045 Annotation
Ordinary negligence can be compared with negligence founded upon the safe-place statute, and in making the comparison, a violation of the statute is not to be considered necessarily as contributing more than the common-law contributory negligence. It is not prejudicial error to not call attention to the different standards of care in a safe-place case when appropriate jury instructions are used. Lovesee v. Allied Development Corp.
45 Wis. 2d 340,
173 N.W.2d 196 (1970).
895.045 Annotation
Adopting the doctrine of pure comparative negligence is a legislative matter. Vincent v. Pabst Brewing Co.
47 Wis. 2d 120,
177 N.W.2d 513 (1970).
895.045 Annotation
There is no distinction between active and passive negligence as to responsibility for injury or full indemnity to a tortfeasor whose negligence was passive. Pachowitz v. Milwaukee & Suburban Transport Corp.
56 Wis. 2d 383,
202 N.W.2d 268 (1972).
895.045 Annotation
For the purpose of applying the comparative negligence statute, both the causes of action for medical expenses and loss of consortium are derivative. The causal negligence of the injured spouse bars or limits the recovery of the claiming spouse pursuant to the terms of the statute. White v. Lunder,
66 Wis. 2d 563,
225 N.W.2d 442 (1975).
895.045 Annotation
The contributory negligence of the plaintiff-spectator in viewing an auto race was not greater than defendants' negligence as a matter of law when the plaintiff did not realize that watching from a curve would be more dangerous than sitting in the grandstand, was not aware that tires would fly into the spectator area, there was no warning of potential dangers, and she was watching the race closely immediately prior to the accident. Kaiser v. Cook,
67 Wis. 2d 460,
227 N.W.2d 50 (1975).
